Seeraty v. Philadelphia Coca-Cola Bottling Co.

Decision Date18 July 1952
Docket NumberNo. 10726.,10726.
PartiesSEERATY v. PHILADELPHIA COCA-COLA BOTTLING CO., Inc.
CourtU.S. Court of Appeals — Third Circuit

Isadore H. Bellis, Philadelphia, Pa. (Herbert F. Kolsby, Robert M. Bernstein, Philadelphia, Pa., on the brief), for appellant.

Thomas E. Comber, Jr., Philadelphia, Pa. (Augustus S. Ballard, Philadelphia Pa., Pepper, Bodine, Stokes & Hamilton, Philadelphia, Pa, on the brief), for appellee.

Before MARIS, McLAUGHLIN and HASTIE, Circuit Judges.

McLAUGHLIN, Circuit Judge.

In a negligence action for personal injuries there was a jury verdict below in favor of the defendant. Plaintiff appeals from the judgment entered thereon. Pennsylvania law governs this diversity of citizenship case.

On August 28, 1948, plaintiff was one of the owners of a Philadelphia drug store and active in its operation. Among other equipment in the store there was a cooler for bottled soft drinks. This contained Coca-Cola and other beverages. According to the plaintiff, all of the bottles of Coca-Cola in the cooler and on the shelf alongside of the cooler had been delivered by the defendant company the previous day. Plaintiff said that he had drained the cooler the morning of his accident and had not observed any foreign substance in it. That afternoon, he stated, he opened the lid of the cooler and as he did he heard an explosion from within it and felt something going into his eye. It is not disputed on this appeal that what happened was that a Coca-Cola bottle broke and that a fragment of the bottle struck plaintiff's right eye.

Plaintiff's sole appeal point is that the court erred in refusing to submit to the jury an instruction requested by him under the following circumstances. After the charge proper had been concluded the court asked counsel if there was anything they wished "* * * to correct or take exception to or add." Counsel for the plaintiff then asked the court to charge "* * that the particular dereliction of the defendant does not have to be shown, that the negligent act from the plaintiff's point of view is demonstrated by a showing of the accident itself." The court replied, "Well, I think I have covered the question of negligence, and you did not request that. I do not think I will charge that."

The request was untimely and was not in writing. Rule 51, Federal Rules of Civil Procedure, 28 U.S.C. But apart from that, we think the district court's charge fully and fairly covered the applicable rules of law. Plaintiff interprets the requested instruction as an expression of his view that under Pennsylvania law res ipsa loquitur or the doctrine of exclusive control is applicable to the facts of this case.

We put to one side a trial court's duty in instructing the jury in a res ipsa loquitur situation, for we think that doctrine is inapplicable here. Just one year ago the Supreme Court of Pennsylvania in Ambrose v. Western Maryland Ry. Co., 368 Pa. 1, 11, 81 A.2d 895, quoted what this court said in Sierocinski v. E. I....

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8 cases
  • Ivy v. Security Barge Lines, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 4, 1978
    ...817, 81 S.Ct. 49, 5 L.Ed.2d 48; Turner Construction Co. v. Houlihan, 1 Cir. 1957, 240 F.2d 435, 439-40; Seeraty v. Philadelphia Coca-Cola Bottling Co., 3 Cir. 1952, 198 F.2d 264, 265; Churchfield v. Paul Snyder, Inc., M.D.Pa.1952, 102 F.Supp. 441, 443-44; Paul v. Duluth, Missabe & Iron Rang......
  • Evans v. SJ Groves & Sons Company
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 20, 1963
    ...435, 439-440 (1 Cir., 1957); see Metropolitan Life Ins. Co. v. Talbot, 205 F.2d 529, 533 (5 Cir., 1953); Seeraty v. Philadelphia Coca-Cola Bottling Co., 198 F.2d 264, 265 (3 Cir., 1952). We are thus not required to consider whether the latter condition is met, although the writer would affi......
  • Comins v. Scrivener
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • July 7, 1954
    ...Co. v. Sullivan, 5 Cir., 108 F.2d 581; Home Insurance Company of New York v. Tydal Co., 5 Cir., 152 F.2d 309; Seeraty v. Philadelphia Coca-Cola Bottling Co., 3 Cir., 198 F.2d 264; Metropolitan Life Insurance Co. v. Talbot, 5 Cir., 205 F.2d 529; Witt v. Merrill, 4 Cir., 210 F.2d 132; Cf. Bak......
  • Goodman v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • January 20, 1960
    ...4 Cir., 1954, 210 F.2d 132, 134; Metropolitan Life Ins. Co. v. Talbot, 5 Cir., 1953, 205 F.2d 529, 533; Seeraty v. Philadelphia Coca-Cola Bottling Co., 3 Cir., 1952, 198 F.2d 264, 265. We have, however, considered in detail the instructions given and find them to have been understandable, a......
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